Citation Nr: 0520105
Decision Date: 07/22/05 Archive Date: 08/03/05
DOCKET NO. 97-34 427 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina
THE ISSUE
Entitlement to an evaluation in excess of 20 percent for
chondromalacia of the right patella with history of posterior
thigh muscle strain.
REPRESENTATION
Appellant represented by: D. G. Krasnegor, Attorney
WITNESSES AT HEARING ON APPEAL
The veteran and wife
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The veteran had active service from January 1958 to January
1973.
This matter initially came before the Board of Veterans
Appeals (Board) on appeal from an April 1997 decision by the
RO which, in part, denied an increase in the 10 percent
evaluation then assigned for the veteran's right knee
disability. In October 1999, the Board, in part, remanded
the appeal to the RO for additional development. In February
2001, the Board denied an increased rating for the right knee
disability.
By order in February 2001, the United States Court of Appeals
for Veterans Claims (hereinafter, "the Court") vacated the
February 2001 Board decision and remanded the appeal to the
Board for further action.
In November 2002, the Board promulgated a decision which
assigned an increased evaluation to 20 percent for the right
knee disability, and the veteran appealed to the Court. In
December 2003, the Court granted a joint motion to vacate, in
part, and remand the November 2002 Board decision. In August
2004, the Board remanded the appeal to the RO for additional
development.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The November 2002 Board decision was vacated by the Court
because the Board failed to provide adequate reasons and
bases as to why the veteran was not entitled to a rating
higher than 20 percent for his right knee disability. The
appeal was remanded in August 2004, primarily to obtain
essential medical information concerning the severity of the
right knee disability and, in particular, the degree of any
functional impairment. The examiner was asked to provide
responses to specific questions concerning the right knee and
thigh disability, and to render an opinion concerning the
degree of any functional loss due to pain, on repeated use,
and during flare-ups under 38 C.F.R. §§ 4.40 and 4.45, and
the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995). The
RO was instructed to review the examination report and
determine if all medical findings necessary to rate the
disability had been provided by the examiner and, if not,
return the report for corrective action. It appears that the
Board's detailed instructions were not completed.
While the examiner provided information concerning actual
functional impairment due to pain and on repeated use, he did
not address the questions of whether there was excess
fatigability or incoordination in the knee, or whether there
was any functional impairment during flare-ups. The Board
recognizes that these may be difficult questions to answer
without resorting to speculation. Nonetheless, the Court
requires that they are addressed by a physician, as the Board
is not competent to render opinions requiring medical
expertise.
The Board is required to discuss its reasons and bases for
assigning a particular disability rating with reference to
the criteria contained in the relevant diagnostic code(s).
It is not permitted to discuss factors outside the scope of
the rating criteria, nor is it permitted to speculate on the
presence or absence of the criteria on the basis of
incomplete information. Pernorio v. Derwinski, 2 Vet. App.
625 (1992).
A remand by the Board imposes upon the Secretary of the VA a
concomitant duty to ensure compliance with the terms of the
remand. Where the remand orders are not complied with, the
Board errs in failing to insure compliance. Stegall v. West,
11 Vet. App. 268 (1998).
Given the absence of relevant clinical information and
failure to obtain the requested medical opinions, the Board
is compelled to remand the appeal for additional development.
See Murinscsak v. Derwinski, 2 Vet. App. 363, 370 (1992).
In light of the discussion above, and to ensure full
compliance with due process requirements, it is the decision
of the Board that further development is necessary prior to
appellate review. Accordingly, the claim is REMANDED to the
RO for the following action:
1. The RO should take appropriate steps
to contact the veteran and obtain the
names and addresses of all medical care
providers, VA and non-VA who treated him
for right knee disability since October
2004. Thereafter, the RO should obtain
these records and associate them with the
claims file. If records cannot be
obtained, this should be noted in the
claims folder, and the veteran should be
notified and so advised.
2. The claims file and a copy of this
remand should be forwarded to the
physician who conducted the January 2005
VA examination so that he can provide a
response to the following questions:
I Was there weakened movement,
excess fatigability, or
incoordination in the right knee.
If feasible, this should be
expressed in terms of the degree of
additional loss of range of motion
or favorable, intermediate or
unfavorable ankylosis.
II Express an opinion on whether
pain could significantly limit
functional ability during flare-ups
or when the right knee is used
repeatedly over a period of time.
This should also, if feasible, be
portrayed in terms of the degree of
additional range of motion loss or
favorable, intermediate or
unfavorable ankylosis due to pain on
use or during flare-ups.
III Were there are any residual
symptoms or findings of posterior
muscle strain of the right thigh.
If so, the extent and severity of
any functional impairment related to
the posterior thigh muscle should be
noted.
If the physician is no longer at that
facility, the veteran should be scheduled
for another VA orthopedic examination to
determine the current severity of his
right knee disability and whether there
are any identifiable residuals of a right
posterior thigh muscle strain. All
indicated tests and studies should be
performed. The claims folder must be
made available to the physician for
review of the case, and a notation to the
effect that this record review took place
should be included in the report of the
examiner.
In addition the questions above, the
examiner should note any limitation of
motion in the right knee and indicate
what is considered normal range of
motion. Tests for stability in the knee
should be accomplished, and any
instability should be classified as mild,
moderate, or severe.
The examiner is advised that all
questions must be answered, to the extent
feasible, so that the Board may rate the
veteran's right knee disability in
accordance with the specified criteria.
If the examiner finds that it is not
feasible to answer any question, he
should so indicated and include an
explanation. The clinical findings and
reasons upon which the opinions are based
should be typed or otherwise recorded in
a legible manner for review purposes.
4. If another examination is necessary,
the veteran must be given adequate notice
of the date and place of any requested
examination. A copy of all notifications
must be associated with the claims
folder. He is to be advised that failure
to report for a scheduled VA examination
without good cause shown may have adverse
effects on his claim.
5. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development has been conducted
and completed in full. In particular,
the RO should determine if all medical
findings necessary to rate the right knee
disability have been provided by the
examiner. If not, the report must be
returned for corrective action. 38
C.F.R. § 4.2 (2004).
6. After the requested development has
been completed, the RO should review and
adjudicate the merits of the claim based
on all the evidence of record and all
governing legal authority, including the
VCAA and implementing regulations, and
any additional information obtained as a
result of this remand. If the benefits
sought on appeal remain denied, the
veteran and his attorney should be
furnished a Supplemental Statement of the
Case, and given the opportunity to
respond thereto.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if in order. The Board intimates no opinion
as to the ultimate outcome of this case. The veteran need
take no action unless otherwise notified. The veteran has
the right to submit additional evidence and argument on the
matter or matters the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
_________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2004).